Q And if you look at the first couple of
paragraphs there, you say, "Nearly a week after the Dover Area
School Board's controversial comments about teaching creation
along with evolution in biology class, people across the county
are pondering the potential benefits and repercussions."

Q And then in the next paragraph you talk about,
"William Buckingham said as part of a search for a new biology
book, he and others are looking for one that offers balance
between the Christian views of creation and Darwin s theory of
evolution." Is that in the second paragraph there?

Q And you even say, "Christian views of creation,"
you repeat Mr. Buckingham s, "This country wasn't founded on
Muslim beliefs or evolution. This country was founded on
Christianity and our students should be taught as such."

Q Now, in the first couple of paragraphs you say
that, "At Monday evening's Dover Area School Board meeting
William Buckingham apologized to anyone he may have offended with
the comments he made at last week's board meeting." Is that
correct?

Q And then in the next paragraph you say, "But
then the school board member reiterated one of his statements to
the roughly 90 in attendance, that the separation of church and
state is a myth." And then you have this quote attributed to Mr.
Buckingham. Nowhere in the constitution does it call for
separation of church and state, end quote.

Q And then going down to the last two paragraphs
in the first column, you write, "Buckingham said while growing up
his generation prayed and read from the Bible during school. Then
he said liberals, in quote, black robes, end quote, were taking
away the rights of Christians." Now did you write that based on
what you heard Mr. Buckingham say?

Q And then in the next paragraph, the last one in
the first column, you attribute a quote to Mr. Buckingham, 2,000
years ago someone died on a cross, he said, can't someone take a
stand for him, end quote. Is that a verbatim quote of what you
heard Mr. Buckingham say?

In the next column, second full paragraph, again,
I believe you're attributing to Mr. Buckingham, you have a quote,
I challenge you, in parenthesis, the audience, to trace your
roots from the monkey you came from -- to the monkey you came
from, end quote. Did I read that correctly?

A "I challenge you, the audience, to trace your
roots to the monkey you came from."

Q And again, is that something you heard Mr.
Buckingham say on the evening of Tuesday, June 14 ?

Q Was it more than -- I believe they allow three
minutes for people to speak.

A I believe it was longer than what was typically
allowed at the time, although I can't remember the exact
time.

Q And then in that next paragraph you wrote,
"During her time she repeated gospel verses telling people how to
become born-again Christians and said evolution was in direct
violation of the teachings of the Bible."

A I do not know him personally, no, I only
recognize him from the meetings.

Q And you write that he said, "The book of Genesis
was not written as a science book but rather as a statement of
faith," and then you have a quote. "It's the place of the church
to teach on matters of faith, he said, not public schools." Now,
is that a direct quote?

Q And then at the top of column three, you wrote,
"During the meeting Buckingham told those in attendance that he
had been asked to tone down his Christian remarks." Again,
there's no quotes there, is that correct?

A Because this article was published on Wednesday,
I cannot say for certain whether or not I would have talked with
him Monday at the meeting or as a follow up on Tuesday. I believe
that because I do not say in the article that I talked to him on
Tuesday, that it would have come out of that meeting.

Q You don't remember whether that was said during
the meeting -- public portion of the meeting or outside the
meeting?

Q You say in that paragraph that begins,
"Assistant Superintendent Michael Baksa said the new edition
still meets state standards and teaches evolution. There are no
references to creationism, he said." Again, there's no quotes in
that paragraph. Do you recall Mr. Baksa using the term
creationism?

A In this particular box I do not remember if I --
if he had said that or if I had phrased the question to Mr. Baksa
saying, sir, are there any references to creationism in this
book.

Q But it was either Mr. Baksa using the term or
you using the term creationism in your question to him?

Q And then in that third paragraph you say, After
that vote Buckingham said he would approve the book if the board
would also approve a, quote, companion, end quote, book, Pandas
and People, which advocates intelligent design theory. You have
"companion" in quotes?

And then in that last paragraph beginning at the
bottom of page -- of the first column, you wrote "Jeff Brown."
Who is Jeff Brown?

A Jeff Brown is a former -- a former board member
on the Dover Area School Board. He would have been an active
member at the time of this article.

Q You said, "Jeff Brown accused the four board
members voting no of blackmailing the board and holding the
students hostage." Again, there's no quotes. Do you remember Jeff
Brown using the term "blackmailing"?

A That is an accurate paraphrase that included the
word "blackmailing," yes.

Q And then in the next two paragraph, you come
back to Mr. Buckingham, and you write, "Buckingham then said if
he didn't get his book, the district would not get the Biology
book. Buckingham has been a staunch advocate for the teaching of
creationism alongside of evolution." And then have you a quote
attributed to Mr. Buckingham, and it s, quote, If we don't get
our book, you don't get yours, end quote.

So, again, that's something you would have written
in your notes as a direct quote from Mr. Buckingham?

Q And then two paragraphs down from there, you say
"Buckingham said the intelligent design book would, quote, level
the playing field in reference to the state s evolution
requirement." So again, is that -- "level the playing field" is
something Mr. Buckingham said?

Q Now, near the bottom of the third column there
is -- paragraph starts, "After the meeting Yingling said she
couldn't say why she changed her mind." So now this is -- you're
now reporting on something that happened after the meeting
formally ended?

Q Now, in the second paragraph, in the second
column, you wrote, "At the end of the meeting a tearful Carol
Brown read a statement before resigning from the board." And
then, "She said that on more than one occasion she had been asked
if she were, quote, born again, referring to the Christian term
for salvation." So do you recall her using the term "born
again"?

Q And then you have a quote attributed to
her, quote, No one has nor should have the right to ask that of a
fellow board member, she read. An individual's religious beliefs
should have no impact on his or her ability to serve as a school
board director, end quote.

Q And then at the end of that first
paragraph, at the top of the third column you wrote, "She said,
if faculty asked they would be entitled to representation from
the district solicitor, Stock and Leader." Are those words -- or
words to that effect that Ms. Brown said?

Q And then you have a quote attributed to a
Heather Geesey. Who is Heather Geesey?

A Heather Geesey is a current board member
and a board member at the time of this meeting.

Q And the quote you have attributed to her
is, quote, If they requested Stock and Leader, they, in paren,
the faculty, close paren, should be fired. They agreed to the
book and the changes in the curriculum, end quote.

Q And you wrote, "But Miller and science
department head Bertha Spahr said Geesey's statement wasn't
true." And then you say, "Spahr said the faculty only agreed to
the Pandas book as a compromise to address Buckingham's concern
that students have alternate materials to study in addition to
their regular text."

Q And is that during the public comment
portion of the meeting or was that in response to what Ms. Geesey
had said about the teachers should be fired if they asked for
representation?

A I believe she said this during the public
comments portion of the meeting.

Q And then you say, "Spahr also said that
not only did her department not approve the new wording, they
were not invited to help write it." And then you have a quote, We
didn't know you were going to do this, end quote.

Q I want to direct your attention to the
bottom two paragraphs of the third column. And you wrote, "Both
the American Civil Liberties Union and Americans United for
Separation of Church and State, who say they are closely
monitoring the situation in Dover, point out that if the school
district were to lose a legal battle, its taxpayers could end up
footing the plaintiffs costly legal bills."

And then you have a quote attributed to Bill
Buckingham, quote, My response is that is what -- I'm sorry, can
you read that? Do you know what's written there?

A "My response to that is what price is
freedom, Buckingham said. Sometimes you have to take a" -- I
cannot read the last word.

A I'm not -- to be honest, I'm not
completely sure which portions of this article I'm responsible
for, and which parts Lori Liebo -- this quote that you're
reading, I'm not sure if that's something she would have included
in the article or if that's something I would have talked to Mr.
Buckingham about.

Q Now, when you write your articles, you
don't have the people -- and we went over this before, but just
to make clear -- when you write an article you don't have the
person you quoted in the article verify the accuracy of that
quote, right?

Q Okay. So assume to say that there are more
than a handful of people. All in your article there you just
spoke to a couple of people to gather their reaction to your
article or any other information they may have, correct?

A Well, I spoke with more than a couple. I
would have been there about two hours and spoke with a lot of
people.

Q So if you spoke to a lot of people then,
all you mentioned in your article are a couple of the people,
right?

Q Now, in this article, again, you had
mentioned that at the June 7 , 2004 meeting, that in particular
Mr. Buckingham and Mr. Bonsell had mentioned the words creation
or creationism. And this is a follow up to that June 7 meeting,
correct?

Q And again, with regard to those two
individuals, in this follow-up piece, do you have any statements
that you have quoted from them, direct quotes, where the word
creationism or creation is included? I'm talking about Mr.
Bonsell and Mr. Buckingham.

Q I'm saying with regard to Mr. Bonsell and
Mr. Buckingham, in this article, exhibit 791, which is a follow
up to the June 7 meeting, do you have any direct quotes that you
can attribute to those two men where the word creationism or
creation is stated within those quotes?

Q On this -- on this exhibit there's a box
in the middle that says, "On the web, Pennsylvania's academic
standards for science and technology which allow for teaching of
creationism can be found at," and then it gives a web site for
the Commonwealth of Pennsylvania s, looks like, education
department. Did you prepare that box?

Q And also in this article, as it relates to
comments made at the June 7, 2004 school board meeting by school
board members, you don't have any direct quotes from that meeting
attributed to school board members where the word creationism is
part of the quote.

Q If you can turn back to exhibit 790,
please. On the far right column, I believe that's column four,
you have the quote -- direct quote you attribute to Mr.
Buckingham dealing with Muslim beliefs. Again, that was after the
meeting in a conversation you had with him?

Q Now, according to this article there were
roughly 90 people who were in attendance. And after -- after
meetings -- well, let me ask you this. The center column, it
talks about Charlotte Buckingham and statements you attribute to
her. She made these statements during the public comment portion
of the meeting?

A I don't know whether he said this once,
twice, three times, I just know that he said it.

Q With this article that we're talking
about, exhibit 793, and the other ones we ve talked about today
so far, after you write the article you don't verify with anyone
the quotes that you attribute to them, correct?

Q And again -- well, let me go back. Let's
go back to 793, I'm sorry. 793 deals with the June 14 , 2004
meeting, okay. And according to the article, at least the title
of the article, "Teaching of Creationism was Again a Topic of
Discussion at the Meeting," right?

Q And this is true even though the teaching
of creationism, according to this subtitle, was a topic at the
school board meeting, right?

A Creationism was a topic of discussion
during the school board meeting.

Q My answer -- my question though was, even
though that is the topic of the meeting, in your article you don
t have any direct quotes from school board members or school
officials where the word creationism is part of the quote.

A There is no quote that includes the word
creation, however, creationism was a part of that discussion that
evening, and that would be an accurate description of what took
place.

Q So at this meeting -- how long did this
meeting last, do you remember?

Q But, again, you don't have any of those
newsworthy quotes in this article dealing with a statement --
quoted statement by a school board member or official where the
word creationism is part of the quote, right?

A Well, according to my article it says
that, "There were several reasons why others were not selected,
Baksa said including readability, layout, content, as it relates
to the curriculum." He said -- I'm sorry.

"There were several reasons why the others
were not selected, Baksa said, including readability, layout, and
content as it is related to curriculum. He said neither creation
nor intelligent design were a part of any books that he
reviewed."

Q But at the meeting, July 12 meeting, the
term intelligent design had been used, is that right?

Q And also at this July 12 meeting, where
they re discussing textbooks and books, you don't have any direct
quotes from any school board member/official that includes the
word creationism in a verbatim quote, is that right?

Q And in the first column of the article,
after the quote, you have Mr. Buckingham talking about approval
Of Pandas and People, which advocates, quote, intelligent design
theory, end quote. So that's what Mr. Buckingham had said?

THE COURT: All of the -- well, let's talk
about how we're going to do it just as a precursor, that's fine.
But on Dr. Nilsen's testimony what I had asked Liz to mention
previously, and I'll just reiterate, we have quite a few exhibits
relating to Dr. Nilsen.

If you would be kind enough to take some
time over the lunch hour, and if you haven't done this already,
and somehow highlight for me the exhibits that can be stipulated
based on the master list that we have circulated. And then we can
argue only about those exhibits that are controversial as they
relate to Dr. Nilsen.

With respect to Mr. Buckingham's testimony,
there are fewer exhibits. You might -- we do have a master list
here. Have you distributed that to counsel?

THE COURT: So I'll ask you to coalesce and
see if you could work that out.

Now, I want to talk for a minute about the
-- as a precursor to argument on the news articles, it appears to
me, and I direct this first to the plaintiffs, it appears to me
that we have newspaper articles that are being introduced or
attempt to introduce newspaper articles for two purposes, mainly,
one is the truth of the contents, some of the contents of the
articles, in particular as that goes to certain statements that
are in dispute, mainly it appears statements by Mr. Buckingham,
but possibly statements by others.

The second purpose appears to be to
introduce the newspaper articles under the effect prong and the
Lemon test. And it was argued previously that -- and controverted
by the defendants that because it -- because the articles are
introduced on the effect prong, if I understood your argument,
that the truth is not at issue.

Do I have that right from the plaintiffs
standpoint?

MR. WALCZAK: Your Honor, yes, we believe
they come in both for the truth of what's asserted in the
articles, that in fact it's non-hearsay under Rule 801, but even
if it was hearsay, if there's ever a situation that meets the 807
residual hearsay exception, I mean this is certainly it. I'm
happy to argue that.

THE COURT: Well, I don't -- you know, I want
to refrain, consistent with what I said to Mr. White and I think
Mr. Gillen wants to be a party to this argument, so I'm not
pressing you necessarily to argue it, I'm just trying to get
squared away before we start to argue.

Where in 801 though, by the way, are you
hanging your hat?

MR. WALCZAK: I am hanging my hat, so to
speak, on 801(d)(1)(B), prior statement by a witness where the
declarant testifies at the trial or hearing, is subject to cross
examination concerning this statement, and the statement is --
and I'm going down to (B), consistent with the declarant's
testimony; and it's offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence
or motive.

THE COURT: And you're arguing in the
alternative 807, is that correct?

MR. WALCZAK: That's correct, Your Honor. But
coming back to the original question, yes, I mean we are offering
these 14 articles that -- I believe it's 16 articles that were
testified to by Ms. Bernard-Bubb and Mr. Maldonado. We are
offering those for the truth of the matter asserted. We are
offering all of the articles and the letters and the editorials
under the effects prong as this is kind of the historical record
that's out there. And regardless of whether it's true or not,
that's what was reported, that's what the public would have read.
And --

THE COURT: Well, let me ask you this, can
you identify in the -- now, you have articles -- those articles
in particular that go to the disputed statements, you can do
that?

THE COURT: No, I don't mean now, but it's
possible for you to do that. I'm sure that I can go over the
testimony and do it as well, but I would put that burden on you
because I think that we need to argue them in two
classifications. And I say this to the defendants as well.

I think to the extent that there are certain
articles that contain statements that are either disputed in
whole or in part by defendants witnesses and in the main it
appears Mr. Buckingham, but there may be others, I think we need
to take those and identify those and understand what it is that
we're talking about.

And then I recognize that there's an
overlap, and that those same articles you might seek to introduce
under the effect prong. And I'm not sure under the endorsement
prong, but I frankly don't know how that would work with
newspaper articles, and that's an argument we'll leave for
another day. But I think we should be clear what it is that we're
doing.

Are you taking the position -- are the
plaintiffs taking the position that those articles that are not
being introduced to controvert denials by witnesses as they
relate to statements made, that the truth of those articles or
other parts of the articles, the truth is not at issue in those
articles? Are you saying they're not hearsay because they don't
go to the truth as they relate to the effect prong?

MR. WALCZAK: Your Honor, we would argue that
if -- of the 16 articles about which we heard testimony in the
last day, the entire article comes in for the truth of the matter
asserted. I mean this is, frankly, the best historical record
that we have. It's based on notes taken contemporaneously by
people who were there, who listened, who wrote it down. And they
have testified that what they wrote down was truthful, it was
accurate. There is a great degree of reliability here and,
frankly, you know, I'm not sure why we would exclude what is
clearly the best contemporaneous historical account of what
happened in this situation.

So we would offer it not just to rebut the
statements of the defendants, but we would offer these 16
articles in their entirety.

THE COURT: Well, I think you have to have a
purpose. I think to simply introduce them into the record without
a purpose, I will tell that you now, and I think you're going to
have to hone that argument a little bit so to simply say they're
the best historical record. Record of what? I mean we have -- we
have other testimony in as to what happened at these meetings.
And I want to be careful how we approach this.

I fully recognize that you re, at least in
part, attempting to introduce the articles as they relate to
these disputed statements. But I think we need to have something
more than these are historical records of -- or the best
historical records of these events. I will tell you that now, and
you should think about what the balance of the contents of these
articles go to other than simply that they're historical records.
I'm not entirely sure about that. And I'm not entirely sure of
the relevance, although I'm not forestalling an argument on that
basis.

MR. WALCZAK: Just, let me just observe, Your
Honor, that there are -- that the direct quotes are relatively
few in these articles. If -- if you actually look at the
articles, virtually every paragraph in there that doesn't have a
direct quote, indicates that Mr. Buckingham said or reported. And
so I don't think it s difficult to distinguish the direct quotes
from the paraphrases. And there also have been disputes by the
defendants and will be more disputes I'm quite sure as to what
happened at these meetings, not just what was said.

THE COURT: And I -- I understand that. And
so that -- that is entirely consistent with -- what you just said
is entirely consistent with my -- and is in fact is in answer to
my question. If you're introducing the articles for disputed
facts, in order to assist the Court in resolving certain disputed
facts, that's fine, but I -- and I'd have to go and review these
articles one by one, but arguably there are extraneous things in
those articles that would not go to disputed facts, and I -- I
want to be cautious about how we approach this.

And to simply say that the articles are a
historical record generally of what took place, I'm not so sure
that that is a -- that that convinces me about the admissibility.
I think you just need to hone that. And by saying this, I put the
defendants on notice, and these are some of the areas that I
think we need to touch on as we look at the -- as we look at the
articles.

So we'll reserve further argument on the
articles until after the lunch hour.

Now, let me ask you, what do you have in
mind for testimony this afternoon? We're going to go back to
defendants case and --

THE COURT: We're going to finish -- are we
finishing Mr. Baksa at some point or not today?

MR. WHITE: As I understand it, Your Honor,
Mr. Gillen intends to call Heather Geesey as the next witness,
and then we're going to come back with Mr. Baksa after that.

THE COURT: All right. So we'll pick up --
now, I guess we can pick up with argument after lunch. What is
your pleasure? You want to -- you want to deal with this now or
do you want to keep going with witnesses?

MR. ROTHSCHILD: I think, given what is left,
we ought to keep pressing forward with witnesses in order to get
this case completed by --

MR. THOMPSON: Your Honor, I think you ve
raised some very crucial evidentiary points here. And I think a
part of that will really deal with the substantive aspects of the
law. We're talking about the effects prong. So I think it's a
matter that we should spend some time on to give the Court our
best opinion --

THE COURT: I would tend to agree with that.
Why don't we do this, taking into consideration what Mr.
Rothchild said and what you're saying, Mr. Thompson, I m
concerned that we're going to get too far behind and have such an
accumulation of exhibits that it will take us half a day to get
them in.

Let me ask your indulgence, other than the
articles that were rendered for Mr. Buckingham and Dr. Nilsen,
which remain in dispute, obviously, that's what we just talked
about, I would ask that you deal with Dr. Nilsen and Dr. -- or
Dr. Nilsen and Mr. Buckingham over the lunch hour. Let s try to
get that done -- those two done, because I don t think they're
particularly controversial. Some may, but let's argue the
non-article exhibits after lunch.

We will reserve arguments, which obviously
will be a longer argument and could take quite some time on the
newspaper articles based on the intellectual discussion that we
ve had here and my telegraphing what my concerns are, and we'll
have to do it next week. I would just as soon accept Mr.
Rothchild's suggestion that we keep plowing through testimony in
the available time.

MR. THOMPSON: So that I understand it
correctly, Your Honor, you're holding in reserve until next week
the arguments on the articles and the effect it has on the -- the
effects prong aspect of it and the truth for the matter asserted
in the articles?

THE COURT: Yeah, consistent with my preview,
if you will, I think we can tackle that next week. I don t think
there's any impediment to continuing with witnesses and handling
that next week, because it does really weave into argument that I
want -- I'm going to want to hear at the end of the case as we
get into the effect prong, the endorsement test, and things like
that. So these all combine at some point. And I don't think
there's any reason to wait.

If you -- or to do it today, and we can
wait. If you want to discuss among yourselves what you think an
appropriate intermezzo is next week that we can have some
extended argument on that, that's fine with me, I'll take it
whenever you want to -- whenever you want to address it. Monday,
if that works for everybody, but I understand there is issues of
witness availability, and we want to keep going and keep taking
testimony.

So we will do Buckingham and we will do Dr.
Nilsen after lunch, non-articles only; we'll reserve the
articles.